Can the political process protect property owners from the use of eminent domain? Consider this story from Fox News:

Officials in Auburn, New York threatened to possibly use eminent domain to force property owners to sell their land so a developer could build a multi-million dollar hotel and conference center. But in a surprise vote, the Auburn Industrial Development Agency unanimously voted not to use eminent domain by a vote of 9 to 0.

As negotiations continued with three property owners over the past several months, it appeared that Auburn would have to resort to eminent domain to clear the way for the proposed 88 room, $11 million hotel and conference center. City officials said the hotel would bring jobs, new tax revenue, and improve the city, which is located in upstate New York, as it plans to launch a music festival in two years.

There was at least one hold out, Mike Kazanivsky, who owns a barren grass strewn lot that he says he bought to build a small miniature golf and ice cream amusement park. When we stood on his property two weeks ago, he wept at the thought that he could be forced to sell his land for a private project. . . .

He insists he does not want to sell his plot of land.

“Everyone kept saying you have to put a figure on it, you have to put a figure on it. How do you put a figure on something you don’t want to sell?”

He insisted “I never wanted to stop progress, but I didn’t want them to take this from me.” . . .

So, to recap, the city proposes taking property through eminent domain, then backs off after the issue becomes controversial. So, in at least one case, the political process did protect the property owner. But the plural of anecdote is not data - the political process worked in this case, but might not in others.

(H/T Erika Lauer)

Ben Barros

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Among the several thousand articles I'm allegedly writing is one tentatively entitled The Horcrux Theory of Property. A confluence of events and ideas this week has prompted me to write about it here, but first a little background. For those of you without kids or who aren't otherwise Harry Potter fans -- as a parent of three young kids I can tell you far more about 'Dobby the House Elf' then I'd care to admit -- a horcrux is a magical object that contains a part of a person's soul. The idea that some object of property might contain part of a person's -- or a people's -- soul has been much on my mind lately because of (a) a case I taught, (b) two great articles I recently read, and (c) a short story that has haunted me for some time.

First, the case. I devote my last property class of the semester to Kelo. Like the general public, most students find the decision disturbing. And following the Court's lead, the debate tends to revolve around the meaning of 'public use' within the 5th Amendment. But here's a series of questions I pose to my students:

Be honest:what is that you find most troubling about Kelo?Is it that the property taken was given to another private landowner?Would you be untroubled if, instead, the property taken had been turned into a public dump?Or would public ownership of the dump not satisfy you?Isn’t what really galls you that a little old lady was forced from the home she was born in, had always lived in, and wanted to die in?Let’s have a show of hands.

The result is always the same.I suspect, dear reader, that the result is the same for you:If we’re honest, the issue isn’t who owns the property taken; it’s that some property should never be taken. Why, then, is the focus of debate and uproar and political fallout over Kelo the meaning of ‘public use’?

Here’s why, I think: Kelo strikes a nerve we don't have a very good name for; indeed, that we have refused to acknowledge as a matter of law. The nerve I think was touched by Kelo was, of course, famously identified by Margaret Jane Radin in, among other works, Reinterpreting Property . As Radin explained, some property becomes so bound up with the self -- so essential to our identity -- that it is no more fungible than we ourselves are. As J.K. Rowling might describe it, it has become a horcrux: it contains a part of the soul.

[continued, with links to a couple of great articles, so keep reading!]

Responding to those who argue that homeowners who strategically default on their mortgages are immoral and socially irresponsible, this article argues that breaching a mortgage contract is not only morally acceptable, it may be the most responsible course of action when necessary to fulfill more important obligations to one’s family.

Ben Barros

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